Raavi Vijay Kiran, vs Raavi Ganga Ratnam,
2022 Latest Caselaw 7367 AP

     HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

     CIVIL MISCELLANEOUS APPEAL No.247 of 2022

JUDGMENT:

Plaintiff in suit O.S.No.141 of 2021 filed the above civil

miscellaneous appeal under Order XLIII Rule 1 of CPC,

against the order and decree dated 09.05.2022 in I.A.No.804

of 2021 in O.S.No.141 of 2021 on the file of XII Additional

District Judge, Guntur.

2. Parties to this judgment are referred as per their array

in the plaint.

3. Plaintiff filed suit O.S.No.141 of 2021 seeking partition

of plaint schedule properties into three equal shares and to

allot one such share to the plaintiff.

4. The averments in the plaint, in brief, are that plaintiff

and 2nd defendant are brothers; 1st defendant is their mother;

3rd defendant is wife of 2nd defendant and 4th defendant is son

of defendants 2 and 3. Plaintiff, defendants 1 and 2

constitute Hindu undivided joint family and father of plaintiff

by name Venkateswarlu was the manager of the joint family;

that during the lifetime of father in the year 2017,

compensation was awarded to the family under Rehabilitation

and Resettlement package from the Government for acquiring

land for Polavaram project; that an extent of nearly Ac.20.79

cents of the joint family lands were acquired by the

Government; that basing on entries in the revenue records,

an amount of Rs.1,39,51,462/- was deposited in the name of

Venkateswarlu; an amount of Rs.42,24,333/- was deposited

in the name of 1st defendant; an amount of Rs.48,70,834/-

was deposited in the name of 2nd defendant and an amount of

Rs.29,63,129/- was deposited in the name of plaintiff. Thus,

the family in total received an amount of Rs.2,60,09,758/-;

that father Venkateswarlu died on 14.12.2018 leaving behind

the plaintiff, defendants 1 and 2 as his legal heirs; that

defendants 1 and 2 expressed intention to purchase

properties in the joint names of plaintiff and 2nd defendant, as

the family continued to be joint and no partition was effected;

that 2nd defendant being the eldest son took over the

management of joint family; that plaintiff reposed faith and

confidence in 2nd defendant, however, plaintiff recently came

to know that defendants purchased plaint A, B and C

schedule properties in the names of defendant 2 to 4; that on

noticing the fraudulent acts, plaintiff questioned the

defendants; that 1st defendant remained silent; that item No.1

of plaint A schedule was purchased in the name of 2nd

defendant under an agreement of sale dated 19.02.2018; item

No.2 of plaint A schedule was purchased in the name of 2nd

defendant under a registered sale deed dated 10.08.2021;

that plaint B schedule property was purchased in the name

of 3rd defendant under an agreement of sale dated 20.04.2018

and plaint C schedule property was purchased in the name of

4th defendant under a registered sale deed dated 19.09.2019;

that the transactions referred supra were purchased by

utilizing the joint family money denying the legitimate rights

and share of plaintiff in the joint family and hence, suit was

filed for partition.

5. Along with the suit, plaintiff filed I.A.No.804 of 2021

under Order XXXIX Rules 1 and 2 of CPC seeking temporary

injunction restraining the respondents 1 to 4 in anyway

meddling with the plaint schedule properties by creating any

type of documents, pending disposal of the suit. In the

affidavit filed in support of the petition, plaintiff reiterated the

averments in the plaint and prayed for grant of temporary

injunction.

6. 2nd Respondent filed counter and opposed the

application. It was contended interalia that partition was

effected in 2011 and the names were entered into revenue

records; that the Government acquired the lands individually

and awarded the compensation; that item No.1 of plaint A

schedule was purchased under an agreement of sale and it is

pending for registration; that item No.2 of plaint A schedule

was purchased by 2nd defendant from his vendors for the

purpose of constructing a house; that plaint B schedule

property was purchased by 3rd defendant with his own funds

under an agreement of sale of 2018 and it is pending for

registration; that plaint C schedule property was purchased

by 2nd defendant from his own money; that plaint E schedule

property is only an imagination of plaintiff; that in respect of

plaint D schedule property, 2nd defendant stated that he has

no objection for partition; that plaint A, B and C schedule

properties are not joint family properties and eventually,

prayed the Court to dismiss the petition.

7. During the enquiry, on behalf of petitioner, Exs.A-1 to

A-3 we remarked. No documents were marked on behalf of

2nd respondent.

8. Trial Court by order dated 09.05.2022 dismissed the

application. Aggrieved by the same, the above civil

miscellaneous application is filed.

9. Heard Ms.Nimmagadda Revathi, learned counsel for the

appellant and Sri Gandham Siva Prasad, learned counsel for

2nd respondent.

10. Learned counsel for appellant would submit that

ancestral property was acquired by the Government and

awarded compensation and the 2nd respondent purchased the

schedule properties out of the compensation amount in

favour of himself, respondents 3 and 4. She would also

submit that unless injunction is granted restraining the

respondents from meddling with the schedule properties,

they will create third party interest, which would result in

multiplicity of proceedings. She would also submit that since

the 2nd respondent admitted about receiving of compensation

it being ancestral, any property purchased subsequent to

that constitutes as joint family property and hence, the

petitioner is entitled to a share in it and the trial Court did

not consider the said aspect. She would further submit that

the appellant proved prima facie case, balance of convenience

and irreparable loss for grant of temporary injunction.

11. Learned counsel for 2nd respondent supported the order

of the trial Court.

12. Basing on the above contentions, the following points

arise for consideration:

(1) Whether the appellant proved prima facie case, balance of convenience and irreparable loss for grant of injunction?

(2) Whether the order under appeal warrants any interference?

(3) To what relief?

13. The contention of the appellant is that plaint schedule

properties were purchased by 2nd respondent out of money

deposited by the Government pursuant to acquisition

approximately Ac.20.79 cents of land belonged to joint family.

According to the appellant, an amount of Rs.1,39,51,462/-

was deposited in the name of Venkateswarlu; an amount of

Rs.42,24,333/- was deposited in the name of 1st defendant;

an amount of Rs.48,70,834/- was deposited in the name of

2nd defendant and an amount of Rs.29,63,129/- was

deposited in the name of plaintiff. He also would contend his

father died on 14.12.2018.

14. 2nd Respondent would contend that there was partition

in the year 2011 and the Government acquired the lands and

deposited compensation in the respective bank accounts.

There is no joint family and hence, no injunction can be

granted.

15. During the course of enquiry, Exs.A-1 to A-3 were

marked. Ex.A-1 is registered sale deed dated 19.08.2021,

Ex.A-2 is registered sale deed dated 19.09.2019 and Ex.A-3 is

legal notice. Except that no other documents were marked.

For grant of injunction, the appellant has to establish prima

facie case, balance of convenience and irreparable loss.

Going by the averments in the plaint, Government acquired

the lands and deposited Rs.1,39,51,462/- in the name of

Venkateswarlu; Rs.42,24,333/- was deposited in the name of

1st defendant; Rs.48,70,834/- was deposited in the name of

2nd defendant and of Rs.29,63,129/- was deposited in the

name of plaintiff. The contention of 2nd defendant that there

was partition, though no document was filed, gains support

from the contention of the plaintiff regarding deposit of

compensation amount in the respective bank accounts.

Apart from that the transactions pleaded by the plaintiff with

regard to purchase of item No.1 of plaint A schedule in the

name of 2nd defendant and also plaint B schedule property in

the name of 3rd defendant are of the year 2018 i.e. item No.1

of A schedule is purchased under agreement of sale dated

19.02.2018 and B schedule property was purchased under

agreement of sale dated 20.04.2018. However, father of

plaintiff died on 14.12.2018. The contention of appellant that

after death of their father, there was an understanding that

properties have to be purchased in the name of plaintiff and

defendants gains no support, since the agreements of sale are

even prior to death of father. Exs.A-1 and A-2 sale deeds

stood in the name of respondents 2 and 4 respectively. It is

not the case of appellant that father late Venkateswarlu

purchased property in the name of respondents 2 and 3

during his lifetime.

16. Appellant did not file any document to show that entire

compensation was transferred to the account of his father

and after his demise, 2nd respondent purchased plaint A, B

and C schedule properties with the said amount. Except

Exs.A-1 and A-2, no other documents are exhibited before the

Court. Appellant failed to prove prima facie case for grant of

injunction. Regarding proof of existence of Hindu joint family

does not lead to the presumption that property held by any

member of the family is joint and the burden rests upon any

one asserting that any item of property was joint to establish

the fact. Moreover, whether the schedule properties are joint

family properties or not, is the point to be decided during the

course of trial and the plaintiff has to prove that fact. Merely

marking Exs.A-1 and A-2 during the course of enquiry will

not prove the case of plaintiff, that those properties are joint

family properties.

17. The plaint schedule properties are not in the name of

plaintiff or his father. It is not the case of appellant that the

amount deposited in his bank account was utilized for

purchase of land by the 2nd respondent. In fact, the trial

Court considered all these aspects and dismissed the

application.

18. Plaintiff is seeking injunction against the respondents

in anyway meddling with the plaint schedule properties by

creating any documents. A perusal of the I.A.No.804 of 2021

would reflect that claim against the 3rd respondent, as not

pressed. Having not pressed the claim against 3rd respondent

still the appellant is claiming injunction against the 3rd

respondent. Since the appellant failed to establish cardinal

principles of prima facie case, balance of convenience and

irreparable loss, he is not entitled for the relief of injunction.

In view of the same, this Court finds that there are no

grounds to interfere with the order of the trial Court. Hence,

the appeal is liable to be dismissed.

19. Accordingly, the Civil Miscellaneous Appeal is

dismissed. No order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 26th September, 2022

PVD